December 18, 2019, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Applicant determined to be CAT impaired on basis of Marked impairment - Applicant vs. Toronto Transit Commission, 2019 CanLII 101715 ON LAT -009821/AABS
Heard Before: Jesse A. Boyce, Adjudicator
Date of Decision: August 27, 2019
CATASTROPHIC INJURY: applicant must demonstrate a marked impairment in one category of the Guides; or applicant must demonstrate WPI of 55%; conflicting medical evidence; poor historian; some lack of credibility in expert testimony
The Applicant was struck by a streetcar while crossing the street as a pedestrian sustaining physical injuries. The Applicant also made claims for psychological, emotional and behavioural impairments which have resulted in concentration issues, irritability, anxiety, stress, depression, sleep issues, headaches and suicidal ideations since. He argues that he is now CAT impaired. ON this basis he sought benefits from the TTC pursuant to the Schedule.
The Applicant underwent several IEs and the TTC determined the applicant did not meet the criteria for CAT impairment and denied benefits. The Applicant claims CAT status on the basis of the results of his own IEs and that he is entitled to benefits pursuant to the Schedule.
The Applicant appealed to the LAT for resolution.
ISSUES IN DISPUTE AT LAT
- Did the applicant sustain a catastrophic impairment as defined under the Schedule?
- The applicant sustained a catastrophic impairment as a result of the accident.
In order to be considered CAT impaired under the Schedule the Applicant is required to prove that the impairments suffered as a result of the accident have caused at least one Class 4 (Marked) impairment in any of the domains outlined in the Guides, or must demonstrate that he has a combination of physical and psychological impairment ratings from medical professionals that exceed the 55% Whole Person Impairment (“WPI”) threshold provided for in the Schedule.
On review of the evidence it appears that while the pain and physical impairments experienced by The aAplicant were a subject of the hearing, they are not a significant contribution to his CAT designation. The parties seem to agree.
Most of the hearing was dedicated to [the applicant]’s emotional, psychological and behavioural impairments that have arisen because of the accident and how this dramatic change has resulted in a loss of useful function. The evidence shows The Applicant’s lack of emotional and psychological regulation, which has resulted in irregular moods and behaviour, sleep issues and suicidal ideations, can be traced directly to the traumatic brain injury he suffered from the accident and the trauma and stress that ensued.
CAT determination includes the analysis of post-accident function, and whether it is useful in comparison to their pre-accident function.
The Adjudicator noted that The Applicant was a poor historian of his own life and a combative witness making t difficult to determine what truths were inconvenient and which were the result of a brain injury.
On balance the Adjudicator determined that the Applicant:
- Had a successful career prior to the accident in an ultra-competitive field.
- He signed over power of attorney to his wife at 46 years of age indicating that he cannot overlook mounting evidence of his inability to handle his finances and decision-making.
- He made four documented suicide attempts with continued outbursts and withdrawal from social events
These facts point to psychological and behavioural irregularities affecting his day to day life that are beyond his control. These problems show a departure from his pre-accident life coinciding with the timing of his accident and the traumatic brain injury he sustained.
The Adjudicator determined that on a balance of probabilities, the Applicant has sustained at least one Marked impairment due to a mental or behavioural disorder he sustained as a result of the accident. Accordingly, he has sustained a catastrophic impairment as defined by the Schedule and is therefore entitled to the extended policy limits.